' MANZOOR HUSSAIN SIAL, J.--This Regular First Appeal is directed against judgment and decree dated 21-7-1987 of the learned Civil Judge, First Class, Wazirabad whereby he dismissed the suit for recovery of Rs,5,50,000 instituted by the appellants against Mahboob Ali and another on 13-5-1985.
2. The plaintiffs maintained that Mahboob Ali respondent No,1 asserted on 12-5-1982 that he was general attorney of Muhammad Rafiq respondent No,2 who owned land in Tehsil Wazirabad which the latter wanted to dispose of. On 14-5-1982 they entered into an agreement to purchase the said land and paid Rs,2 lacs in advance. On 15-5-1982 the balance amount of Rs,3 lacs was also paid and the sale-deed in respect of the land in question was got registered. Afterwards the plaintiffs learnt that they had been deceived as the defendant No,2 was not owner of the land for which the plaintiffs had to pay Rs,5,50,000. Muhammad Rafiq respondent No,2 was proceeded ex parte whereas the suit was contested by Mahboob Ali respondent No,1. The learned trial Judge formulated on 7-1-1986 following issues:-
(1) Whether the civil Court has got no jurisdiction to hear this suit? OPD.
(2) Whether the plaintiffs have not come to the Court with clean hands? OPD.
(3) Whether the plaintiffs are estopped by their conduct to bring this suit? OPD.
(4) Whether the suit is not maintainable in view of preliminary objections Nos. 2, 3 and 5 of the written statement? OPD.
(5) Whether the agreement dated 14-5-1982 was validly executed? OPP.
(6) Whether the defendants have fraudulently obtained Rs,5 lacs from the Plaintiffs? If so, its effect?
OPP.
(7) Relief ' On 21-7-1987 the plaintiffs' evidence was closed under Order XVII, rule 3, C.P.C. And their suit dismissed. Hence this appeal.
3. Learned counsel for the appellants contended that the appellants were not afforded adequate opportunity of producing evidence. The provisions of Order XVII, rule 3, C.P.C. Were not attracted in the circumstances of the present case. If was submitted that non-production of evidence on 21-7- 1987 was not intentional, the suit for the recovery of substantial amount ought not to have been lightly dismissed. It was also submitted that the learned trial Judge was under legal obligation even after closing plaintiffs' evidence to give findings on the issues earlier framed by him. It was lastly contended that the learned trial Court did not deal with issue No,5 in the impugned judgment and the verdict given under issue No,6 was untenable.
4. Learned counsel for respondent No,1, on the other hand, submitted that the plaintiffs were provided number of opportunities to lead evidence; on their failure to produce evidence the learned trial Judge rightly closed their evidence. It was also submitted that as the plaintiffs failed to bring on record even iota of evidence in support of the averments made in the plaint, the suit was, therefore, rightly dismissed.
5. We have considered the contentions raised by learned counsel for the parties and have gone through the record requisitioned in this case with the assistance of learned counsel for the parties.
The perusal of the order sheet shows that on 11-3-1986 plaintiffs did produce evidence in Court but as their counsel did not reach Wazirabad the case was adjourned to 28-5-1986. On the adjourned date also some witnesses of the plaintiffs were available but their evidence was not recorded and the case was adjourned for 30-6-1986 subject to payment of costs. On 30-6-1986, there was a move for compromise between the parties due to which the case was adjourned for settlement of the dispute through compromise. Thereafter the case suffered some adjournments not for fault of the appellants until it was adjourned to 21-7-1987 for evidence of the plaintiffs. On 21-7-1987 the counsel for the plaintiffs fell ill and adjournment in the case was sought on that ground. Plaintiffs' request for adjournment was declined and the impugned order closing their evidence and dismissal of the suit was passed on that date.
6. After hearing learned counsel for the parties and going through the record, we cannot help observing that the plaintiffs did not act contumaciously in not producing evidence on 21-7-1987.
The learned trial Judge, in our estimation, took extremely stringent view in applying the penal provisions of Order XVII, rule 3, C.P.C. Which was not called for in the circumstances of the case. The plaintiffs did produce evidence on the first date of hearing; they, however, failed to produce evidence on 21-7-1987 due to sudden illness of their counsel. The superior Courts of this country had always encouraged the decision of the disputes on merits rather than readily applying the penal provisions of law. We are of the considered view that it would have advanced the interest of justice if the plaintiffs were afforded another opportunity to lead evidence rather than applied penal provisions of law in the instant case. The impugned judgment and decree is also liable to be set aside on the ground that the learned trial Judge did not decide the suit by giving reasons on all the material issues framed in the suit.
6-A. In the result, this appeal is accepted, the impugned judgment and decree dated 21-7-1987 passed by the learned Civil Judge, Wazirabad is set aside and the case is remanded to the learned trial Court for fresh decision in accordance with law.
7. The parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.